# Herrera v. United States

> District Court, W.D. Tennessee · February 12, 2024

URL: https://www.frixlaw.com/law-library/cases/10441900

## Case

- **Court:** District Court, W.D. Tennessee
- **Decided:** February 12, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10441900

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

FRANCISCO HERRERA, )
)
Movant, )
) Cv. No. 2:21-cv-02010-SHL-atc
v. ) Cr. No. 2:17-cr-20096-SHL
)
UNITED STATES OF AMERICA, )
)
Respondent. )

ORDER MODIFYING THE DOCKET, DENYING MOTION PURSUANT TO 28 U.S.C.
§ 2255, DENYING A CERTIFICATE OF APPEALABILITY, CERTIFYING THAT AN
APPEAL WOULD NOT BE TAKEN IN GOOD FAITH, AND DENYING
LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

Before the Court are the pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody (“§ 2255 Motion”) filed by Movant, Francisco
Herrera, Bureau of Prisons register number 30188-076, who is currently incarcerated at the Federal
Correctional Institution in Herlong, California (ECF No. 1),1 and the United States’s Response in
Opposition to Defendant’s Motion Under 28 U.S.C. § 2255 (“Answer”) (ECF No. 10). For the
reasons stated below, the Court DENIES the § 2255 Motion.
I. BACKGROUND AND PROCEDURAL HISTORY
A. Criminal Case No. 2:17-cr-20096
On April 12, 2017, a federal grand jury in the Western District of Tennessee returned a
four-count indictment charging Herrera, a convicted felon, with possessing four firearms, in
violation of 18 U.S.C. § 922(g)(1). (Criminal (“Cr.”) ECF No. 2.)

1 Herrera’s current address was obtained from the BOP’s Inmate Locator,
https://bop.gov/inmateloc/ (searched Jan. 19, 2024). The Clerk is directed to mail copies of this
order and the judgment to Herrera at that address.
Herrera filed a Motion to Suppress the firearm evidence on June 12, 2017. (Cr. ECF No.
21.) After conducting an evidentiary hearing, the Court denied the motion. (Cr. ECF No. 30.)
Pursuant to a written plea agreement, Herrera plead guilty to the indictment on July 24, 2017, but
reserved his right to appeal the denial of the Motion to Suppress. (Cr. ECF Nos. 33, 36.) On

October 24, 2017, the Court sentenced Herrera to a term of imprisonment of seventy-seven months
to be followed by a two-year supervised release period. (Cr. ECF No. 49.) Judgment was entered
on October 24, 2017. (Cr. ECF No. 51.)
Herrera appealed the Court’s denial of the Motion to Suppress on October 25, 2017. (Cr.
ECF No. 52.) The United States Court of Appeals for the Sixth Circuit affirmed the Court’s
decision on May 23, 2018. United States v. Herrera, 733 F. App’x 821 (6th Cir. 2018).
B. Herrera’s § 2241 Petition
On October 28, 2020, Herrera filed a pro se Petition for a Writ of Habeas Corpus Under
28 U.S.C. § 2241 (“§ 2241 Petition”) in the United States District Court for the District of South
Carolina, arguing that his conviction is invalid in light of Rehaif v. United States, 139 S. Ct. 2191

(2019). (Petition for Writ of Habeas Corpus, Herrera v. Barnes, No. 9:20-cv-03779-RMG (D.S.C.
Oct. 28, 2020), ECF No. 1.) On December 2, 2020, United States Magistrate Judge Molly H.
Cherry issued a report and recommendation (“R&R”) recommending that the § 2241 Petition be
dismissed for want of jurisdiction because Herrera failed to establish that the § 2255 remedy was
inadequate or ineffective. Herrera v. Barnes, No. 9:20-3779-RMG-MBC, 2020 WL 8455087
(D.S.C. Dec. 2, 2020). On December 23, 2020, United States District Judge Richard Mark Gergel
adopted the R&R and dismissed the § 2241 Petition without prejudice. Herrera v. Barnes, No.
9:20-03779-RMG, 2020 WL 7640475 (D.S.C. Dec. 23, 2020). Herrera did not appeal.
C. Herrera’s § 2255 Motion
On January 5, 2021, Herrera filed his pro se § 2255 Motion, arguing that his conviction is
invalid in light of Rehaif because he was not aware that he was barred from possessing a firearm.
(ECF No. 1.) The Court issued an order on January 11, 2021, directing the Government to respond.

(ECF No. 4.) The Government filed its Answer on March 4, 2021. (ECF No. 10.) Herrera did
not file a reply.
II. LEGAL STANDARD
Pursuant to 28 U.S.C. § 2255(a),
[a] prisoner in custody under sentence of a court established by Act of Congress
claiming the right to be released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States, or that the court was
without jurisdiction to impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to collateral attack, may
move the court which imposed the sentence to vacate, set aside or correct the
sentence.

“A prisoner seeking relief under 28 U.S.C. § 2255 must allege either (1) an error of constitutional
magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that
was so fundamental as to render the entire proceeding invalid.” Short v. United States, 471 F.3d
686, 691 (6th Cir. 2006) (internal quotation marks omitted). Movant has the burden of proving
that he is entitled to relief by a preponderance of the evidence. Pough v. United States, 442 F.3d
959, 964 (6th Cir. 2006).
III. ANALYSIS
In its Answer, the Government argues that the § 2255 Motion should be denied because it
is untimely. (ECF No. 10 at 2–3.) The Court agrees.2 Twenty-eight U.S.C. § 2255(f) provides

2 Because the § 2255 Motion is untimely, it is unnecessary to address the other arguments
advanced by the Government except to note that Rehaif requires only that a defendant know that
he is a convicted felon, not that convicted felons cannot possess firearms. Greer v. United States,
that “[a] 1-year period of limitation shall apply to a motion under this section.” The running of
the § 2255 limitations period begins to run on “the date on which the judgment of conviction
becomes final,” 28 U.S.C. § 2255(f)(1), or “the date on which the right asserted was initially
recognized by the Supreme Court, if that right have been newly recognized by the Supreme Court

and made retroactively applicable to cases on collateral review,” Id. § 2255(f)(3). Herrera’s
motion is untimely under either calculation.
A. 28 U.S.C. § 2255(f)(1)
Under § 2255(f)(1), the limitation period begins to run from the date that the conviction
becomes final. “[F]or purposes of collateral attack, a conviction becomes final at the conclusion
of direct review.” Johnson v. United States, 246 F.3d 655, 657 (6th Cir. 2001). Here, the Sixth
Circuit affirmed the denial of the motion to suppress on May 23, 2018. Herrera’s conviction
became final on August 20, 2018—the expiration of the time for filing a petition for a writ of
certiorari with the United States Supreme Court. See Jimenez v. Quarterman, 555 U.S. 113, 119
(2009). The running of the § 2255 limitations period commenced the next day, and it expired one

year later, on August 20, 2019. Herrera signed his § 2255 Motion on December 28, 2020, (ECF
No. 1 at PageID 13), more than sixteen months after the expiration of the limitations period. As a
result, his motion is untimely under § 2255(f)(1).

141 S. Ct. 2090, 2095 (2021) (“In felon-in-possession cases after Rehaif, the Government must
prove not only that the defendant knew he possessed a firearm, but also that he knew he was a
felon when he possessed the firearm.”); see also United States v. Bowens, 938 F.3d 790, 797 (6th
Cir. 2019) (“Rehaif did not graft onto § 922(g) an ignorance-of-the-law defense by which every
defendant could escape conviction if he was unaware of this provision of the United States Code.”).
Herrera does not allege that he was unaware that he had previously been convicted of a felony.
B. 28 U.S.C. § 2255(f)(3)
Under § 2255(f)(3), the limitation period begins to run on the date on which the Supreme
Court recognized the right asserted. The Court need not reach the question of whether Rehaif
recognized a new right that applies retroactively, because even if § 2255(f)(3) were to apply,

Herrera’s motion is untimely. The Rehaif decision was issued on June 21, 2019, and, therefore,
any new limitations period would have expired one year later. Herrera’s § 2255 Motion was signed
more than six months after the limitations period expired. Further, Herrera does not dispute that
his § 2255 Motion is untimely under either provision. (ECF No. 1 at PageID 12.)
C. Equitable Tolling
Although Herrera does not argue that he is entitled to equitable tolling, the § 2255
limitations period is subject to that doctrine. Benitez v. United States, 521 F.3d 625, 630, 636 (6th
Cir. 2008). “The doctrine of equitable tolling allows federal courts to toll a statute of limitations
when a litigant’s failure to meet a legally-mandated deadline unavoidably arose from
circumstances beyond that litigant’s control.” Robertson v. Simpson, 624 F.3d 781, 783 (6th Cir.

2010) (internal quotation marks and citation omitted). However, “the doctrine of equitable tolling
is used sparingly by federal courts.” Robertson, 624 F.3d at 784.
“The party seeking equitable tolling bears the burden of proving he is entitled to it.” Id. A
habeas petitioner is entitled to equitable tolling “only if he shows ‘(1) that he has been pursuing
his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented
timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544
U.S. 408, 418 (2005)). “The statute of limitations should be equitably tolled until the earliest date
on which the petitioner, acting with reasonable diligence, should have filed his petition.” Kendrick
v. Rapelje, 504 F. App’x 485, 487 (6th Cir. 2012).
Herrera has not shown that he is entitled to equitable tolling. Indeed, in his § 2255 Motion,
he states, “I must file a 2255 before [I] file a 2241 so, I must file this even if I am time [barred].”
(ECF No. 1 at PageID 12.) It appears that Herrera misunderstands the reason his § 2241 Petition
was dismissed and seeks to remedy that error by filing this untimely § 2255 Motion. However,

ignorance of the law is not a basis for equitable tolling. See, e.g., Plummer v. Warren, 463 F.
App’x 501, 506 (6th Cir. 2012) (“the district court correctly concluded that the reasons Plummer
actually gave for the delay in filing her petition—namely her need to find help and inexperience
in the law—are not extraordinary circumstances warranting equitable tolling”); Moore v. United
States, 438 F. App’x 445, 449 (6th Cir. 2011) (“Ignorance of the law, even by an incarcerated pro
se petitioner, is not grounds to toll the statute.”); Miller v. Cason, 49 F. App’x 495, 497 (6th Cir.
2002) (“Miller’s lack of knowledge of the law does not excuse his failure to timely file a habeas
corpus petition.”); Brown v. United States, 20 F. App’x 373, 375 (6th Cir. 2001) (“Ignorance of
the limitations period does not toll the limitations period.”).
Because the § 2255 Motion is time barred and Herrera has not demonstrated an

extraordinary circumstance that justifies the delay, the Court DENIES the motion and
DISMISSES the § 2255 petition WITH PREJUDCE.
IV. APPEAL ISSUES
Twenty-eight U.S.C. § 2253(a) requires the district court to evaluate the appealability of
its decision denying a § 2255 motion and to issue a certificate of appealability (“COA”) “only if
the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2); see also Fed. R. App. P. 22(b). The COA must indicate the specific issue or issues
that satisfy the required showing. 28 U.S.C. §§ 2253(c)(2) & (3). No § 2255 movant may appeal
without this certificate.
A “substantial showing” is made when the movant demonstrates that “reasonable jurists
could debate whether (or, for that matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotation marks omitted).

Where a district court has rejected a constitutional claim on the merits, the showing
required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate
that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong. . . . When the district court denies a
habeas petition on procedural grounds without reaching the prisoner’s underlying
constitutional claim, a COA should issue when the prisoner shows, at least, that
jurists of reason would find it debatable whether the petition states a valid claim of
the denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.

Slack v. McDaniel, 529 U.S. 473, 484 (2000). “In short, a court should not grant a certificate
without some substantial reason to think that the denial of relief might be incorrect.” Moody v.
United States, 958 F.3d 485, 488 (6th Cir. 2020). “To put it simply, a claim does not merit a
certificate unless every independent reason to deny the claim is reasonably debatable.” Id.
In this case, there is no question that the Movant’s § 2255 Motion is time barred, therefore
the Court DENIES a COA.
The Prison Litigation Reform Act of 1995, 28 U.S.C. §§ 1915(a)–(b), does not apply to
appeals of orders denying § 2255 motions. Kincade v. Sparkman, 117 F.3d 949, 951 (6th Cir.
1997). Rather, to appeal in forma pauperis in a § 2255 case, and thereby avoid the appellate filing
fee required by 28 U.S.C. §§ 1913 and 1917, the prisoner must obtain pauper status pursuant to
Federal Rule of Appellate Procedure 24(a). Id. at 952. Rule 24(a) provides that a party seeking
pauper status on appeal must first file a motion in the district court, along with a supporting
affidavit. Fed. R. App. P. 24(a)(1). However, if the district court certifies that an appeal would
not be taken in good faith, or otherwise denies leave to appeal in forma pauperis, the prisoner must
file a motion to proceed in forma pauperis in the appellate court. See Fed. R. App. P. 24(a)(4)–
(5).
In this case, for the same reasons the Court denies a COA, any appeal would not be taken
in good faith. It is therefore CERTIFIED, pursuant to Federal Rule of Appellate Procedure 24(a),

that any appeal in this matter would not be taken in good faith, and leave to appeal in forma
pauperis is DENIED.3
IT IS SO ORDERED, this 12th day of February, 2024.

s/ Sheryl H. Lipman
SHERYL H. LIPMAN
CHIEF UNITED STATES DISTRICT JUDGE

3 If Movant files a notice of appeal, he must also pay the full $505 appellate filing fee or
file a motion to proceed in forma pauperis and supporting affidavit in the Sixth Circuit Court of
Appeals within thirty days of entry of this Order. See Fed. R. App. P. 24(a)(5).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10441900. Public record. Not legal advice.